To Mark Constitution's Birthday, Judge Considers Democratic Process

To mark the 220th anniversary of the signing of the U.S. Constitution by its framers, Aharon Barak, recently retired president of the Supreme Court of Israel, outlined the role judges play in his country's democratic process -- one that's besieged by security concerns and lacks a written constitution to guide jurisprudence.

"Every battle a country faces must be waged in accordance with rules and laws. We need laws most in times of war and battle," said Barak, author most recently of The Judge in a Democracy, during a Sept. 17 lecture at the National Constitution Center on Independence Mall.

Perhaps the most influential jurist in Israel's short history, Barak -- who was appointed to the court in 1978, and served as president from 1995 until he hit retirement age in 2006 -- is credited with strengthening the role of the judiciary, and ensuring that the Jewish state placed a premium on upholding human rights even as it dealt with daily threats of terrorism.

While Israel has never adopted a formal constitution -- ironing out the exact role religion plays in the state continues to be a major hurdle -- in a 1998 ruling, Barak essentially interpreted the series of Basic Laws passed by the Knesset as having the same legal weight as a constitution.

Barak's talk was part of a daylong celebration at the Constitution center in honor of the document's birthday. Lynne Cheney, second lady of the United States, had visited earlier in the day.

The program, presented in conjunction with the University of Pennsylvania Law School, was the 50th annual Owen J. Roberts Memorial Lecture in honor of the 1895 Penn graduate who later served on the U.S. Supreme Court. Past lecturers have included Felix Frankfurter, Abba Eban and Antonin Scalia.

Barak is not without his critics, who've charged that through his rulings, he expanded the authority of the bench beyond its appropriate scope and gave the court disproportionate power.

In a sense, his recent remarks provided a rebuttal of sorts.

"Every balance that is made between security and freedom will invoke some limitation on security and freedom," said Barak, adding that he was describing the approach that works best for Israel, and not trying to advise how the U.S. legal system should deal with issues relating to terrorism.

"National security does not grant an unlimited license to harm any individual, at any time -- including terrorists," he declared, before offering his reasoning behind some of the court's more controversial decisions.

Those include a 2006 ruling that upheld the Israel Defense Force practice of killing members of groups considered terrorist organizations, though the bench maintained that any potential harm to civilians must be one of the military's major considerations; a 2004 judgment that mandated a rerouting of Israel's security fence to lessen the impact on Palestinians; and a 1999 decision that banned torture, even when it's believed a prisoner might have knowledge of an impending terrorist attack.

Barak explained that in cases pertaining to the West Bank and Gaza, where Israeli law did not apply, he often based his decisions on international law, including opinions put out by the International Court of Justice at the Hague. In 2004, that court offered an advisory opinion that claimed Israel's security fence was illegal, a position the Israeli court had rejected just months beforehand.

Writing in the April 23 issue of The New Republic, Richard Posner, a judge on the U.S. Court of Appeals for the Seventh Circuit, argued that Barak's reliance on international law meant that his approach was so divergent from the practice of American judges that it would be nearly impossible to apply his approach here.

"What Barak created out of whole cloth was a degree of judicial power undreamed of even by our most aggressive Supreme Court justices," Posner wrote in his review of The Judge in a Democracy. He also said the book didn't get to the heart of what inspires and influences Barak's legal reasoning.

But during the talk, the Israeli did not hesitate to say that he is guided by the lessons of the Holocaust. Born in Lithuania in 1936, he was smuggled out of the Kovno ghetto as a child and hidden by a non-Jewish farmer.

One of the causes of the Holocaust, he said, was the failure of German democracy to stand up to the forces of totalitarianism. A judge's highest loyalty is to the democratic system itself, he noted.

"We cannot take the continued existence of democracy for granted. The idea that it cannot happen to us can no longer be accepted," insisted Barak. "If we will not protect democracy, democracy will not protect us."